An interesting article by Jeffrey Rosen in the New York Times Week in Review is a useful reminder (though that is not its purpose) that one of the most significant differences between liberals and conservatives these days is a, or rather, the, matter of interpretation.

In passing, Rosen defines strict constructionists as “those who believe the Constitution should be read literally,” which makes me wonder: what do lax (permissive?) constructionists believe — that the Constitution should be read figuratively? What they believe, I believe, as I pointed out with some heat if not light here, here, here, and, recently, here, is that legal texts should not really be read at all; they should be construed, and construed liberally.

Sooner or later, probably sooner, we will enter a season of contentious conflict over President Bush’s judicial nominations. Chances are the president will, once again, nominate the sort of judges he believes would be best for the country, which is to say that he is unlikely to “move to the center” by submitting nominees that would please Senate Democrats. This may or may not be good politics. It will be regarded as principled or arrogant, depending on your point of view.

Since neither the president nor the Senate Democrats are likely to suddenly turn accomodationist, this conflict probably cannot be avoided. Nor, in all liklihood, can it be significantly moderated or modulated. Nevertheless, I do have a suggestion that would make the ensuing debates more fruitful than poorly disguised policy arguments over gay marriage, abortion, and (I hope) racial preferences or endless sloganeering over “strict constructionism” or “originalism” vs. “a living Constitution,” etc.

Instead, nominees should be pressed to reveal where they fit on a scale that runs from “reading literally,” on one end, to “construing liberally” on the other. What limits (if any) do they recognize, in short, to judges’ authority to interpret? One way to do this would be to elicit a response to the interpretive style represented in the New Jersey Supreme Court opinion, discussed in my earlier posts linked above, disregarding a statutory provision barring the replacement of candidates on a ballot within 51 days of the election.

Great, or at least liberal, minds work alike, for today’s Washington Post has an OpEd by Michael Kinsley making essentially the same point about “strict constructionism” as Jeffrey Rosen, though he does so more polemically.

What does President Bush mean, if anything, when he says that his kind of judge “knows the difference between personal opinion and the strict interpretation of the law”? Taken literally, this simply means he wants judges who agree with him. Every judge sincerely believes that he or she is interpreting the law properly.

No, that’s wrong. Taken literally, Bush’s statement means exactly what it says (that’s what “literally” means): he wants judges who “know the difference between personal opinion and the strict interpretation of the law.”

Kinsley is free to argue that Bush’s statement doesn’t “really” mean what the dumb or dissembling Bush thinks it means, i.e., that really, deep inside, Bush means only that he wants judges who agree with him. But he is not free to argue that that’s what Bush’s statement means if “taken literally.”

Liberals, in short, have trouble reading anything “literally.”

Now consider the interpretive assumption underlying Kinsley’s statement, which is something on the order of the postmodernist “Le Droit, C’est moi!” Since “[e]very judge sincerely believes that he or she is interpreting the law properly,” Kinsley and like-minded liberals make no distinction between “the law” and the judge’s opinion, which reigns supreme, unconstrained by text or other external, non-subjective authority.

ADDENDUM [14 Nov. 1:25PM]

One more thought on this. Construers often regard textualists as somewhere between dumb and simple-minded for believing that texts, words, have discernible meanings that are clear enough to serve as constraints on action. “Sure,” they say in effect and in many different contexts, “no one can be deprived of ‘the equal protection of the laws,’ but what does ‘equal’ mean?”

Good point. Many constitutional, and not a few statutory, provisions are opaque, open-ended, vague, or all three. Legal texts are not usually like roadmaps, telling you clearly where to go and where to get off. In these circumstances, and they are legion, fidelity to text does not obviate the necessity of interpretation (although that fidelity will, I believe, influence and sometimes even constrain a textualist’s but not a construer’s interpretation).

Still, what is often overlooked is that some texts are clear, and what separates the textualists from the construers is that the latter feel no strong obligation to be bound even by these. There is nothing opaque or open-ended in the New Jersey provision that a candidate can be replaced on the ballot up to 51 days before an election or the Florida legislature’s provision that election returns must be reported within seven days. Both of those unambiguous deadlines were liberally construed by state supreme courts to be … not deadlines.

The distinction, in short, between interpreting a law and ignoring or rewriting it is real, even if sometimes it is difficult. And sometimes it isn’t.

Say What? (6)

Your nostalgia for the late-18th century is touching, John, but I wouldn’t hold out too much hope for a literal reading of the Constitution winning the day in the long run.

Although I was surprised you didn’t mention the best argument for Supreme Court justices reading the Constitution literally….then they’d have to regard Clarence Thomas as being only three-fifths as good as an actual justice, which is undoubtedly true.

Also, I didn’t understand why you were so worked up about the NJ Supreme Court way back in Oct 02. Surely those NJ judges were acting like good Republican free-marketeers, and recognizing that the greatest public benefit comes through competition….i.e., voters would get a better senator if they had a choice of two candidates.

Good libertarian economics, surely. And they did get a better senator. They elected Frank Lautenberg.

Edna – I think you’re quite wrong in arguing that a literalist reading of civil rights statutes etc. allows the federal government to engage in racial preference. I recognize that courts have followed your reading, but all that means is that I think they’re wrong, too.

From many different examples, just take Title VI of the 1964 Civil Rights Act. (The following quotes are taken from an earlier post of mine, which contains the relevant links to quoted sources.)

Title VI provides:

[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

In proposing what became Title VI, President Kennedy said:

Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination. Direct discrimination by Federal, State, or local governments is prohibited by the Constitution. But indirect discrimination, through the use of Federal funds, is just as invidious….

The non-discrimination standard embodied in this legislation is not opaque, ambiguous, or unclear, as evidenced by the Dept. of Justice’s own TITLE VI LEGAL MANUAL:

An intent claim alleges that similarly situated persons are treated differently because of their race, color, or national origin. To prove intentional discrimination, one must show that “a challenged action was motivated by an intent to discriminate.” … This requires a showing that the decisionmaker was not only aware of the complainant’s race, color, or national origin, but that the recipient acted, at least in part, because of the complainant’s race, color, or national origin. However, the record need not contain evidence of “bad faith, ill will or any evil motive on the part of the [recipient of federal funds].”

The federal government, the states, and every university that practices racial preference routinely treats similarly situated persons differently because of their race, color, or national origin, in direct violation not only of a strict or literal reading of the law but even of a remotely sensible reading of it.